The Trump Administration cannot stop the demise of marijuana prohibition, no matter how hard it might try.
Since Donald Trump’s surprising victory in the presidential election there has been a lot of speculation about how this could affect marijuana legalization at the state level. A lot of this discussion has focused on potential Trump selections to be Attorney General, which include legalization opponent Rudolph Giuliani.
Most of the discussion, such as in excellent articles from CBS News and the Washington Post, address the decision of the Obama Administration not to interfere with state regulation of legal marijuana cultivation and licensed retail sales and how this could easily be reversed by Trump’s choice for A.G. On the other side of the scales is the opposition of states to losing their newly valued tax revenue from marijuana sales, the downside of public backlash against such policies, and the overall conflict such a step would create in terms of general conservative and republican support for state’s rights to innovate new public policies.
But there is a more formidable constraint on the ability of the Trump Administration to stop legalization, and on its ability to undo legalization in the eight states and Washington, D.C. that have enacted it. It’s very simple: the federal government can’t force a state to arrest anyone, for anything, and that’s been the problem with prohibition ever since the first decriminalization laws were passed in the early 1970s.
Yes, it’s true that the Department of Justice can enforce the federal Controlled Substances Act (CSA) and move against the marijuana industry in legalization states. The Trump Administration can also take legal action against states to prevent them from aiding and abetting violations of the CSA through enforcement of state laws establishing regulatory provisions. There is no question that the federal government can shut down the legal marijuana industry, and no question that this would be a serious policy reversal with wide-scale ramifications for the industry (as well as wide-spread political ramifications for the Trump Administration and the Republican Party.)
However, even those drastic actions will have no effect on state laws making it legal for adults to grow and possess marijuana. If any state decides it does not want to use its police, courts, and jails to punish marijuana users, there is nothing the federal government can do to change that.
The best-case scenario for an anti-legalization Trump Attorney General is that he (or she) can transform the framework of marijuana legalization in eight states from a licensed, taxed market to something more like what is in place in Washington, DC. Marijuana is legal, users are not subject to arrest or other sanctions (such as fines) and the illegal market flourishes, and pays no taxes. Frankly, there are a lot of small scale growers and sellers who would welcome this sort of development.
A federal shut-down of the legal marijuana industry would clearly place law enforcement on the side of the illegal marijuana industry, and underscore how prohibition benefits those who grow and sell marijuana outside the law. It would be the ultimate act of corruption, cheered on and well-received by organized crime throughout the world as they are welcomed back into the marijuana trade by the Trump Administration’s Attorney General. This would be the perfect example of all that is wrong with prohibition, and one of the greatest arguments for national legalization ever.